Bankruptcy Hearing Early Feb *** WON + COSTS ***

[gigaset]

Hi Everyone,

 

I am representing a close friend (really!) at a bankrupcy hearing in early Feb and would appreciate some advice.

 

This will be the resumption of a twice-adjourned hearing after the judge allowed a period for the claimant (DCA) and their solicitor to 'get their act together' with regards to paperwork because, having become involved only a couple of weeks before the previous court date, I discovered that:

 

• The alleged bank overdraft debt stretched back to the late nineties
  
• When the DCA started chasing in 2003, the debt was queried in writing by the defendant who stated that they believed the debt was not correct and asked for full details
  
• The DCA replied a month later saying that they could not find any paperwork but would forward it ASAP, but all they have since provided is a copy of a bank account statement
  
• No further paper 'evidence' has since been provided.
  
• There was some verbal to-and-froing last year (during a very stressful period in the defendent's life as their marriage was breaking up and they were receiving counselling), culminating in a Statutory Demand and subsequent petition.
  
• The petition submitted to the court referred to a debt with a credit card company totally uninvolved in these events and with whom the defendant has never had an account.
  

From all the paperwork I have seen this debt is statute barred, so I sent in a SAR (acknowledged and the 40 days are up within a week or so) to see what the DCA can dig up and I am now preparing for the next day in court. As I see it, unless the DCA digs up any written admission or details of any payments since 2006 (I am assured there has been none), the petition should be dismissed and, based on my research, I propose to also ask for an injunction and an indemnity costs order.

 

I have seen some useful wording hereabouts relating to legal, FSA/IFA/trade body conduct and duty of care, and citing the relevant paras of documents etc., but any specifics I should major on?

 

Also, subject to what I find from the DCA (assuming the debt is statute barred, as I believe from all the paperwork I have seen), do you suggest contacting the other party's solicitors before the hearing to lay out my understading of the situation and seeing if they want to make a proposal to settle this issue amicably, or will it be best to see them on the day - either before or during the hearing?

 

Thanks.

[42man]

If there is a gap of 6 years (5 in Scotland) anywhere in the life of the debt where payment has not been made nor acknowledgment has been made in writing then it will be statute barred, if they issued a statutory demand within the 6 year period then they commenced legal action before it became statute barred, it is really important you try and ascertain the last payment dates. You say there has been an adjournment twice ? (did all parties turn up at those adjourned hearings) ? You mention an overdraft.....there are likely to be a significant amount of excessive charges (if they have never been reclaimed before). If the defendant has never had any kind of credit card with the original claimant then you should effectively deny the claimant any kind of relief in insolvency whatsoever, if it isn't their account then the claimant should be kicked out of court.....

 

If you have a very strong case, then I would be writing a brief letter that states you will be claiming your full costs in court, at this time you are prepared to allow a dismissal if they pay your costs so far. You should stress an 'unless' order to the judge....that unless they come up with a full portfolio of paperwork (90 times out of 100 they don't produce the right/relevant paperwork) then it should be kicked out with a costs order in your favour....

 

When you mentioned "legal, FSA/IFA/trade body conduct" did you mean CPUTR2008 ? - something along these lines - http://www.consumeractiongroup.co.uk/forum/showthread.php?331758-Help-with-Statutory-Demand-from-Lowell-Investigations-Hampton-Legal-Please-Help!/page2

 

Who is the DCA chasing this if I may ask ?

[gigaset]

Hi Everyone,

 

Key points:

 

• No account activity (payments) since late 1990s according to relevant bank statement provided by DCA
  
• Debt queried in writing 2003 with a admission by the DCA over a month later (still in 2003) that they were still looking for paperwork - and no further paperwork has been forthcoming from them.
  
• No admission of debt in writing all the way back to 2003 minimum
  
• Statutory demand issued 2012.
  
• The wrong account details on the petition was a paperwork cock-up by the DCA and they said they would have it amended.
  

The first adjournment was due to a serious illness in the defendant's family (both parties attended).

 

The second was after I presented my review of the documentation and stated that there were errors of fact in the petition (wrong bank account) and that the paperwork I'd seen suggested any debt was statute barred.

 

Yes, the stuff I have read includes references to the CPUTR as suggested by the link - can't find the original I used but I have the text copied into a Word doc and it refers to 'professional dilligence', leaving out or presenting information in such a way that it creates a false or misleading impression or exploits debtors' lack of knowledg, and not ensuring that an adequate history of the debt is passed on as appropriate.

 

There's also a reference to the Consumer Credit Act of 1974: No copy of the assignment of the alleged debt has been provided, despite claims to the contrary and no consideration of the personal circumstances of the defendent (marriage break up, illness etc.).

 

I also referred to Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) and Jacob v Vockrodt [2007] EWHC 2403 (QB) "...when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition".

 

I posted a SAR to the DCA on 5th Dec, which they acknowledged in writing on 10th. When would their 40 days be up (nothing received so far) - as I understand it, the response period is a straight '40 calendar days' rather than working days - which I make the 14th Jan, but if from the acknowledgement received on 10th, that makes 19th Jan. Next hearing is 1st week in Feb.

 

Rather not name the DCA at this time.

 

Questions:

 

 

• I propose to write to the DCA's solicitors - but when?
  
• When is SAR period up?
  
• If I propose to settle for 'costs' should I suggest a figure or ask for their proposal? What's a reasonable basis for calculating costs (including stress etc..?) ?
  
• If this goes to a hearing and I request an indemnity costs order, what cost awards are typical?
  
• What if the account details on the petition are still wrong?
  

Thanks again - I really appreciate your input.

[42man]

To answer your questions, then you could write sooner rather than later. It looks like you are going to get this kicked out....and what is more annoying (and in breach of OFT's guidelines/CPUTR2008) is that they know it is statute barred but at this stage have not dropped the case !!!

 

SAR is up after 40 calendar days

 

Give them a figure for costs, the litigant in person rate is £18 per hour you could claim (as an example) 10 hours research of Insolvency Law, 10 hours research of Consumer Credit Law etc.....I wouldn't include any figure for 'stress' As this (in a legal setting) can only really be set by a judge.

 

There aren't any typical costs, just work out the time it has taken you - (there is a link here for costs which you may find useful - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

 

If the account details are wrong on the petition, then it is simply a case of "The defendant has NEVER had any kind of account with the numbers XXXXXXX"

 

the claimant is denied any relief whatsoever

[42man]

What you MUST do too is report this debarcle to the Office Of Fair Trading too....

[42man]

On the SAR issue, as soon as the 40 calendar days has passed, then you issue a LETTER BEFORE ACTION, enclosing a copy of the original SAR and the recorded delivery/postal slip, you give them a further 7 days to comply (again send this recorded delivery). Despite this then you should still raise the Data Protection Issue in court....bearing this in mind and time (of course you do not want to drag this on too long) then if a judge grants any extension then you should firmly request an 'unless' order in that if they don't provide the whole portfolio of paperwork then they be damned to hell with a costs award against them....

[gigaset]

Many thanks again - I'm amazed at the generous responses and advice - all gratefully received. Will keep you posted.

[gigaset]

Hi Everyone,

 

The hearing is now over and it went like this:

 

At a pre-hearing meeting with DCA’s rep, he suggested there was still time to arrange a repayment plan (!). We replied that, as we advised them by letter when they did not reply to the SAR (we eventually got a bundle after a total of 48 days, but it did not turn up any new material of note or relevance), we considered the alleged debt to be statute barred and that their ongoing attempts to collect and discuss payment terms, plus the bankruptcy petition could be considered vexatious and harassment and that there were a number of serious civil and legal actions (as well as the failure to comply to the DCA within the required period) we might consider on the basis of their behaviour to date – especially since they could still not produce the original CCA despite being asked for a copy years ago and them admitting they could not find it (also years ago).

 

We told the rep we’d be asking for a dismissal of the petition and costs on the indemnity basis since they did not respond to our suggestion that they should drop their action and settle our nominal costs (as we outlined in our letter) amounting to 20 hours of our time at £18/hour.

 

The rep went out and made a hasty phone call.

 

In the hearing, we went first and outlined our position. When asked by the judge to counter any of the arguments, the DCA’s rep went on about how they were still looking for paperwork and how a spreadsheet the defendant used for budgeting was an admission of the debt (even though it was prepared last year – well after the debt became statute barred). We countered that the spreadsheet (just a table with no annotations or signature etc.) was totally irrelevant and the judge agreed – as they did at the last hearing too! We also pointed out that the petition still had the wrong creditor company on it.

 

At this point, the rep said that the DCA was withdrawing the petition.

 

We asked for costs and after further discussions where the DCA's rep tried to argue that we weren't entitled to any, we settled for what we offered in our letter to the DCA, plus I threw in that day’s train fares of over £30, and the total (a tad over £390) was awarded to us by the judge - who gave the DCA 14 days to pay!

 

A few bits of follow-up:

 

• The rep suggested in the pre-hearing meeting that even if they withdrew the bankruptcy petition they could still take other avenues (go for a judgement?) – what do you think about that? Should we pre-empt anything or just see what happens?
  
• The 14-days-to-pay will be up on 18th Feb – what if we’ve received nothing ? Do we inform the court?
  

Oh, by the way, the DCA is Arrow.

 

Thanks again.

[42man]

Brilliant news, very well done, they may try to pursue you through the civil system but unlikely as they will lose (let us know if they try). If they fail to pay then I think you have to file for bailiffs to go in....

[42man]

And I urge you to report this to the OFT....you simply MUST

[cerberusalert]

They would be extremely foolish to attempt further civil proceedings unless paying costs is tax deductable for them.

[unclebulgaria67]

Was the DCA rep actually legally qualified ? I am sure that a GCSE Law student at your local comp would have more understanding of the law than the 'tea boy' they sent along.

[DonkeyB]

Excellent. Which solicitor did Arrow use?

[gigaset]

Hi again,

 

As ever, all the comments are appreciated.

 

The rep was acting on behalf of Wilkin Chapman Grange for Arrow.

[PGH7447]

:-DWell done

[daverules]

Very HEARTWARMING

[42man]

Moving to success Legal Success forum